Waldron and Judicial Review

THE CASE THAT STRUCK DOWN A LEGISLATION In the case of Roe v. Wadei , the appellant filed a suit challenging the abortion laws of the state of Texas, co-joined by a medical practitioner, on the simple grounds that the law was too nebulous to be ascertained in some cases. The Texas laws criminalized abortion excepting only in circumstances of threat to life of the mother. The state put forth, that it accorded personal status to foetuses which were protected by 14th Amendment, it has an interest in safeguarding health, maintaining medical standards, and protecting prenatal life and making out the morality object the state held protection of prenatal life as a compelling state interest. This was opposed by claiming various rights, including right to liberty, marital, familial, sexual privacy and the contentious right to absolute abortions. The court decided that the United States Constitution provides a fundamental “right to privacy” that protects a woman’s right to choose whether to have an abortion. However, the abortion right is not absolute.

It must be balanced against the government’s interests in protecting women’s health and prenatal life. Some viewed the Court’s decision in Roe v. Wade as “judicial activism,” – meaning the judges based their decision on personal views rather than existing law. But, supporters of Roe say it is vital in preserving women’s rights and freedoms. THE PITFALLS IN THE ARGUMENT OF WAULDRON The arguments posited by Jeremy Wauldron in opposition to judicial review are dubious and instantaneously give birth to questions of significance. Roe v. Wade is also important to highlight that he juxtaposes this case with British legislation on abortion, rather conveniently and favourably, taking the advantages of pitfalls and lacunae in the above-mentioned judgement. This does not, anyhow, imply judicial review was damp-squib in this instance or could have been worse than had legislature been given the privilege to lay down an outcome. Jeremy Waldron argues, rather strongly and persuasively, that judicial review is inconsistent with the importance that democracies properly attach to political participation and to equality. Waldron’s arguments highlight the apparent incongruity of a democracy giving a small group of unelected judges the last word on matters which concern citizens and legislators, and on which citizens and legislators may be at least as well- informed, and capable of reasoned decisions, as judges. In addition to a properly functioning judiciary, Waldron believes, democracies should normally be expected to have citizens and legislators who care about, and are capable of protecting, the basic rights of members. Therefore, he claims, there is no compelling reason to prefer the decisions of judges to legislators where rights are at stake, and good reasons to believe that doing so detracts from important democratic values and rights. If the decision is weighed against the outcome related reasons, it is only found that Judiciary fared off or would have been better than legislature in decision making, if not worse. This happens to be an example of strong judicial review as it is mentioned “courts have the authority to decline to apply a statute in a particular case (even though the statute on its own terms plainly applies in that case) or to modify the effect of a statute to make its application conform with individual rights .

Courts also have the authority “to establish as a matter of law that a given statute or legislative provision will not be applied, so that as a result of stare decisis and issue-preclusion a law that they have refused to apply becomes in effect a dead letter”. (p. 1354)6 The legislatures would have certainly included the concerns of foetuses’ right to life and also heeded the views of church but judiciary’s capacity to bring outcomes about objectively is indisputable. Legislature is made up of representatives who lack the insight into various theories of rights and liberties and probably are influenced by religious, societal and their-perceived-normative perspectives. Judges are, as well as legislators, cognizant of the democratic point of view. The fact that in India, after Supreme Court Advocates-on Record Association v. Union of Indiaii, judges are appointed by judges themselves is not sufficient to prove that they are undemocratic for the election or appointment does not determine that but the purpose, orientation, beliefs and ethics and the manner of granting or taking away of rights. Judges are better at explaining their stance whereas legislators don’t sometimes explain it or end it brusquely.

They can be selected from a people that is not segregated by lines of race, religion, income and wealth, for instance; they can see themselves as striving to personify what is best in their society, or in its legal system and judiciary; and their actions and deliberations may reflect an ethos of equality and a democratic regard for the rights of all people. Most importantly, the petitioner could not have been able to get this decision but for the judiciary because it is the only place where common people can put their appeals through litigation, this was impossible for legislatures to bring out. At this interesting juncture, the pro-judicial review and anti-judicial review bastions have got the same agenda which is protection of rights as better and as inclusively, in a way, as possible. The validation of women’s rights which is the consequence of the decision matches the purpose of the former and the latter.


Legislative legitimacy thesis by Wauldron is not incorrect though it cannot be inferred to mean that Judiciary’s decision could be unfair. In roe v. wade, Judiciary meted out the decision with utmost fairness, though it does not imply that it will be the same in each and every case. In some cases, judicial review is required whereas in some legislature is better off to hear public’s opinion. Neither is the case that justice and fairness cannot be delivered only with judicial review nor with only legislature, both the sides argue for the same thing; to uphold the rights of the subjects at any costs.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.


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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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